Not Reported in Am. Tribal Law, 2008 WL 6196206 (Grand Traverse Trib. Jud.)
Only the Westlaw citation is currently available.
Grand Traverse Band of Ottawa and
Chippewa Indians Tribal Judiciary.
Derek Joseph BAILEY, Plaintiff,
v.
GRAND TRAVERSE BAND ELECTION BOARD, Sam Evans, Board Chairman, Defendant.
No. 2008–1031–CV–CV.
|
Aug. 8, 2008.
Attorneys and Law Firms
Craig W. Elhart, Craig W. Elhart, P.C., Traverse City, MI, Attorney for Plaintiff.
William J. Brooks, William J. Brooks, PLLC, Manistee, MI, Attorney for Defendant.
By the Tribal Judiciary En Banc.1
OPINION AND ORDER
PER CURIAM.
FINDINGS OF FACT
In this case, Plaintiff Derek Joseph Bailey (hereinafter “Bailey”) filed a complaint against the Grand Traverse Band Election Board (hereinafter “Election Board”). The complaint was filed with the Tribal Judiciary within the time limits set by Article VII, Section 5(g) of the Constitution of the Grand Traverse Band of Ottawa and Chippewa Indians.
Bailey was a candidate for the Tribal Council Chairman position, running against the incumbent Tribal Council Chairman Robert Kewaygoshkum. On May 16, 2008, five business days prior to the general election scheduled for May 21, 2008, the Election Board received a written complaint from tribal member and Tribal Councilor Sandra Witherspoon, as well as a complaint from tribal member Ruth Anderson, both regarding alleged violations of the 2008 Election Regulations by candidate Derek Bailey. The Ruth Anderson complaint was also received by a member of the Election Board on May 16, 2008, but was not considered by the Election Board until after a decision had already been reached on the complaint filed by Sandra Witherspoon. The Election Board chose to combine the two complaints into one written determination as both complaints raised similar issues against Bailey.
The complaints alleged that Bailey violated the 2008 Election Regulations by accessing a campaign website concerning his candidacy for Tribal Chairman from a Grand Traverse Band workplace computer. Both complaints also implied that the Election Board failed to investigate the circumstances surrounding Bailey’s use of his computer when the issue of access to campaign websites was first brought to the Election Board’s attention in March 2008, and that the Board should have addressed the issue at that point.
The Election Board scheduled an emergency meeting for 6:45 a.m. on May 19, 2008 to consider the substance of the allegations made in the Witherspoon complaint. No notice or opportunity to appear at the meeting was provided to the complaining parties, nor to Bailey who was the subject of the complaints. After the Board met to discuss the complaints, it instructed its attorney to draft a written opinion, entitled “Election Dispute Determination, Complaint of Sandra Witherspoon and Complaint of Ruth Anderson Re: Derek Bailey” (hereinafter “Election Dispute Determination”) and approved the written Election Dispute Determination at a later meeting in the early evening of May 19, 2008. On the morning of May 20, 2008, roughly 22–23 hours before the polls were to open for the May 21, 2008 general election, the Election Board Chairman Samuel Evans sent the Election Dispute Determination via global e-mail to all gaming and government employees of the Grand Traverse Band of Ottawa and Chippewa Indians, as has been the Election Board’s past practice. Receipt of this global e-mail by Bailey on the day before the election was the first notice that Bailey received that indicated that the Election Board had not only received complaints against him, but also had acted on the complaints.
The general election was held on May 21, 2008. Bailey was defeated in the general election by Kewaygoshkum by a vote of 233 to 210 votes. Bailey timely filed his complaint against the Grand Traverse Band Election Board (hereinafter “Election Board”) challenging the actions of the Election Board in the days just prior to the May 21, 2008 general election. Bailey has alleged improprieties by the Election Board both as to the procedure used by the Election Board, as well as statements made within the written Election Dispute Determination. Bailey requests that the Tribal Judiciary stay the certification of the general election as to the Tribal Council Chairman position and grant a new election. The Election Board has admitted that it did not follow the 2008 Election Regulations, but denies that it acted improperly, and argues that even if it did, Bailey has not proven that he is entitled to the relief requested of a new election.
From the outset, Bailey has admitted that he used his work computer to access his campaign website (www.votederekbailey.com), but disputes the characterizations of the frequency and dates of his use as stated in the Election Dispute Determination. The evidence showed that all of Bailey’s access to the website occurred prior to his formal filing for candidacy (with the last access being February 27, 2008). Bailey testified that he filed the paperwork to formally declare his candidacy on March 3, 2008. There is no evidence to suggest that Bailey accessed the website in question after he had declared himself to be a candidate for the Tribal Council Chairman position.
Pursuant to Article VII, Section 5(e) of the Constitution above, the Election Board adopted regulations governing the conduct of the 2008 primary and general elections. The Election Board has admitted that it failed to follow the Election Regulations in issuing the Election Dispute Determination concerning Bailey on May 20, 2008, the day before the general election. The Election Board has attempted to justify its failure to follow its own regulations based upon concerns about “rampant rumors” that were circulating relating to the Election Board not taking action as to Bailey’s use of his work computer and “covering up” his alleged violations of election regulations, the “new evidence” of the IT Department report received by the Board, and the lack of time to effectively deal with the situation. The Election Board has argued that it felt it had no alternative but to issue its determination without input from the complaining parties or the candidate Derek Bailey who was accused of wrongdoing for these reasons.
VIOLATION OF ELECTION REGULATIONS BY ELECTION BOARD
In this case, the Election Board violated several provisions of the 2008 Election Regulations (which had previously been duly adopted by the Election Board). The Election Board has authority to issue election regulations pursuant to Article VII, Section 5(e): “The Election Board shall be authorized to issue such rules and procedures as may be necessary to carry out tribal elections and to provide for ongoing voter registration.” When the Election Board issues such rules and procedures, they put the Tribal membership and the candidates on notice as to how the election is to be conducted, the procedure as to how election disputes and challenges will be filed, notice given, the procedure in how such matters will be resolved, etc. In order to maintain and foster confidence by the tribal members in the Election Board and the election system as a whole, it is vital that the Election Board follow the rules and regulations that they have adopted and approved to the greatest extent possible. We conclude that in this case, there were numerous provisions of the 2008 Election Regulations that were violated in the handling the Sandra Witherspoon complaint concerning Bailey.
The first instance where the Election Board failed to follow its own regulations occurred when it decided to take up the complaint filed by Sandra Witherspoon which was dated May 15, but received by the Election Board on May 16, 2008, concerning Derek Bailey’s alleged use of his work computer to develop or work on his campaign website. The complaint filed by Ms. Witherspoon alleged that the Election Board had been aware of Derek Bailey’s use of his work computer to create his campaign website and had done nothing about it. However, the acts complained of by Mr. Bailey all occurred in February or March, well prior to the filing of the Witherspoon complaint. Article XIV(1)(d) of the 2008 Election Regulations states:
All election disputes must be raised in a timely manner so that, to the extent (d) practical, adjustments may be made by the Election Board prior to the actual voting. All election disputes must be filed within ten (10) business days after the error or other violation is alleged to have occurred, or within five (5) business days from the date of the election, which ever is sooner. Any election dispute which is not filed with the Election Board within these time periods is waived. (Emphasis added).
Clearly then, the Witherspoon complaint (and the similar complaint filed by Ruth Anderson), both having been received by the Election Board on May 16, 2008, were not timely filed and should have been considered waived under Article XIV(1)(d) as they were not filed within 10 days of the error or other violation complained of, which occurred months prior to the election. In other words, pursuant to Article XIV(1)(d) of the 2008 Election Regulations, the Election Board never should have taken up the complaints filed by Ms. Witherspoon or Ms. Anderson because they were filed too late.
Procedurally, there were several additional defects in how the Election Board handled the complaints against candidate Bailey. Article XIV(1)(f) of the 2008 Election Regulations states that “The Election Board will decide election disputes using the procedures in paragraph (4) of this Article.” As outlined in more detail below, we conclude that the Election Board failed to follow several of the procedures outlined in Article XIV(4).
The 2008 Election Regulations call for very specific action to be taken once an election dispute or election challenge is filed with the Election Board. Article XIV(4)(a) indicates that:
(a) Following receipt of an Election Dispute or Election Challenge, the Election Board Chairperson shall:
(i) Schedule a timely Election Board hearing to consider the dispute(s) or challenge(s); and
(ii) Serve a copy of the dispute(s) on any other interested person(s) (i.e.Candidate(s) alleged to have violated (ii) campaign regulations; registered voter whose entitlement to vote is in dispute). In the case of an election challenge, the Election Board Chairperson shall serve a copy of the challenge on all Candidates in the disputed election.
Further, Article XIV(4)(c) indicates: “The Election Board Chairperson shall send a notice to the party who filed the dispute(s) or challenge(s) which (c) identifies the date, time and location of the hearing, as well as the procedures or ground rules to be used in conducting the hearing.”2
In this case, although an Election Board meeting was scheduled concerning the Witherspoon complaint, notice was not given to any of the interested parties that the Election Board would be considering the complaint. Further, no notice of the meeting was given to the complainants (Sandra Witherspoon or Ruth Anderson), nor to the candidate involved (Derek Bailey). The evidence presented to the Court indicates that the first time any notice was given to any of the interested parties was when the global e-mail with the attached Election Dispute Determination was sent by Election Board Chairman Samuel Evans to all Tribal government and gaming employees on May 20, 2008.
The Election Board is also required to give advance notice to the interested parties of the procedure to be used in the hearing when the Board is considering an election dispute or election challenge. Article XIV(4)(b) provides:
Prior to the date set for the hearing on the dispute(s) or challenge(s), the Election Board shall set procedures and ground rules for the conduct of the hearing which are appropriate to the circumstances presented by the particular dispute(s) or challenge(s). These procedures may include some or all of the following:
(i) Exchange of documentary exhibits each party or parties to the dispute(s) or challenge(s); (sic)
(ii) Exchange of list of proposed witnesses to be introduced by each party to the dispute(s) or challenge(s);
(iii) Election documents (i.e. absent voter logs) requested by parties bringing disputes or challenges submitted to the Election Board;
(iv) Opening statements;
(v) Presentation of evidence and/or witnesses by each party;
(vi) Cross-examination where appropriate;
(vii) Questioning of witnesses by Election Board members; or
(viii) Closing statements.
In this case, no procedures were identified or set by the Election Board prior to its meeting of May 19, 2008.
The Election Board also failed to require the complaining party or parties in this case, Sandra Witherspoon and Ruth Anderson, to come forward and prove that the allegations in their respective complaints were true. Instead, the Election Board acted on its own with evidence (in the form of an IT Department report) brought forward by its Chairman Samuel Evans without additional evidence or input presented by any outside parties. Article XIV(1)(e) of the 2008 Election Regulations places the burden of proof upon the party filing the complaint to prove to the Election Board wrongdoing on the part of the accused party. The provision states:
In all cases, the person filing an election dispute shall have the burden of proving, by clear and convincing evidence, that the conduct alleged: (i) violates one (1) or more election law or Regulation; or (ii) constitutes a mistake or other irregularity in the election process that requires correction or adjustment. (Emphasis added)
Similarly, Article XIV(4)(d) states that: “If the person initiating the dispute(s) or challenge(s) fails, without good cause, to attend the hearing, the Election Board shall dismiss the dispute(s) or challenge(s) with prejudice.” In the instant case, the complainants were not required to attend an Election Board hearing and prove their case. No such hearing was held. Rather, the Election Board met and made its determination considering only its own internal discussions after receiving and reviewing the written complaints brought by Sandra Witherspoon and Ruth Anderson, and the IT Department report provided to the Board by its Chairman Samuel Evans.3
Plaintiff Bailey also took issue with extraneous statements made by the Election Board that were outside the scope what was necessary to address the substance of the complaints. The Election Board concluded in its Election Dispute Determination that the information in their possession did not indicate that Bailey was using his computer for the purpose of communicating with voters or managing the content on his campaign website, and that his conduct did not appear to be “campaigning” as that term is defined in Article X(10) of the 2008 Election Regulations. However, rather than leaving the matter at that, and merely addressing the substance of the of the disputes or issuing a simple dismissal, the Election Board elected to “censure” Bailey and’ made several additional negative statements and comments about Bailey’s activities. These included Bailey’s alleged violation of the Grand Traverse Band Personnel Policies and government policies concerning use of his work computer. These statements were not necessary in order for the Election Board to explain its position in relation to the election disputes, and in our view, injected the personal opinions of the Election Board members on issues that were outside of the scope of the Election Board’s mandate.
When the potential outcome of an election is in the balance, it is incumbent upon the Election Board to state facts accurately and succinctly, and to make every effort to resolve determinations in such a way that only the substance of the issues raised are dealt with. The resolution of any election dispute will likely have some impact upon the tribal electorate, but the Election Board should not take the added step of making editorial comments that in and of themselves potentially affect the outcome of the election. We believe Article XIV(4)(e) of the 2008 Election Regulations addresses this principle, stating:
If the Election Board finds, by clear and convincing evidence, that there are sufficient grounds to sustain the election dispute(s) or challenge(s), it shall enter such orders, as are necessary and proper to address substance of the challenge(s) or dispute(s). If the challenger or disputer has not met the burden of proof established above, the Election Board shall dismiss the dispute or challenge. The Election Board shall issue its determination in a timely manner and shall issue a written opinion. The orders of the Election Board shall be in conformity with hearing findings and per ART VII Sec. 5(a) the decisions of the Election Board shall be final and conclusive on the Grand Traverse Band. (Emphasis added).
Several statements were made by the Election Board which were not necessary for the Board to deal with the substance of the complaint. Despite the lack of proof presented at trial by Bailey, it is hard to conclude that these editorial statements had no influence on the outcome of the election. We believe the following statements from the Election Dispute Determination were editorial in nature and were not necessary for the Election Board to have made in reaching its determination:
a. At that emergency meeting, Board members learned that “rumors” circulating in the GTB community regarding the frequency with which candidate Derek Bailey was visiting his own website were largely true.
b. The Election Board certainly believes that Mr. Bailey spent an unreasonable amount of time visiting his own campaign website while sitting at his GTB government computer—regardless of whether those internet visits were done during regular working hours or after regular business hours. GTB policies and procedures prohibited Mr. Bailey from using his GTB government computer for personal use—including usage that was related to his campaign. The Election Board believes the number of time Mr. Bailey appears to have used his Tribal government computer to view his campaign website was excessive and Mr. Bailey should be censured for that conduct—even if the facts do not establish that his conduct constitutes “campaigning” as defined in the “Election Regulations.”
c. “It appears that Mr. Bailey simply wasted a lot of time while at his desk in the GTB government offices to monitor the number of persons visiting his website. That conduct, while clearly a violation of the policies governing the use of Tribal government computers, is not clearly violative of the Election Regulations, which are designed to prohibit candidates from using GTB government property (like computers) to campaign or to produce/print campaign literature.”
d. The Election Board does acknowledge that, had information concerning the frequency of with which Mr. Bailey visited his campaign website from his GTB computer been available to the full Board at the time this issue was first raised, the Board may have taken action that would have resulted in a censure at a much earlier date.
It is extremely troubling that the Election Board would take the extraordinary steps of making such extraneous and unnecessary statements under the premise of fair comment. Although the Election Board found no violations of the 2008 Election Regulations, it appears the Board did not like what Bailey had done, and therefore chose to “go the extra mile” by censuring him for alleged violation of government policies, which is far outside the scope of the authority granted to the Election Board under the Constitution.
Even more troubling is that several statements in the Election Dispute Determination were materially false or misleading. Many of the factual errors in the Election Dispute Determination outlined below may have been avoided had the Election Board received input from the complainants and the respondent and followed the procedures outlined in the 2008 Election Regulations.
First, the Election Dispute Determination states: “The [Election] Board received an IT Department report which confirmed that Mr. Bailey (or at least someone using Mr. Bailey’s computer) had visited Derek Bailey’s campaign website a total of 110 times through March 24, 2008.” The testimony presented at trial showed that the IT Department report referenced in the Election Dispute Determination (introduced at trial as Exhibit D) showed the number of “hits” made by Bailey to Bailey’s website (www.votederekbailey.com) between the dates of February 1, 2008 and March 24, 2008. However, the report does not indicate exactly when those hits were made, other than that they were made some time between February 1, 2008 and March 24, 2008. In fact, a later IT Department report (introduced at trial as Exhibit E) generated on May 29, 2008, showed that the “hits” actually occurred between the dates of January 28, 2008 and February 27, 2008, and that no other hits from Derek Bailey’s computer occurred after February 27, 2008.
The testimony further indicated that a “hit” is recorded each time a webpage was linked to (or clicked on), so that a single visit to a website would likely result in numerous “hits” to that website. In other words, the number of “hits” does not equate to the number of times a person may have visited a website. Thus the conclusion stated in the Election Dispute Determination that Bailey had “visited his website 110 times” is misleading and likely overstates the number of visits to the website significantly.4 The Court would further note that the more detailed IT Department report (Exhibit E) was not generated until after the Election Board had issued its Election Dispute Determination. Further, that report also does not indicate at what time the hits were recorded, so it is impossible to tell whether the “hits” on a particular date were from one or several visits to the website on any given date.
GTB ELECTION LAW
This Court’s authority in election cases is limited by the Grand Traverse Band of Ottawa and Chippewa Indians Constitution. Article VII, Section 5 states:
Section 5. Election Board
(a) The Tribal Council shall appoint an Election Board, composed of five (5) registered voters of the Grand Traverse Band, to hold elections, certify election results, and settle election disputes other than allegations of impropriety by the Election Board. The decisions of the Election Board shall be final and conclusive on the Grand Traverse Band.
(b) The term of office for an Election Board member shall be four (4) years.
(c) Allegations of impropriety by the Election Board shall be settled by the Tribal Judiciary.
(d) Tribal members presently holding Tribal Council office or running for office shall not be eligible to serve as an Election Board member.
(e) The Election Board shall be authorized to issue such rules and procedures as may be necessary to carry out tribal elections and to provide for ongoing voter registration.
(f) Any candidate for tribal office may choose a representative to be present when the election ballots are counted by the Election Board.
(g) A Band member shall have five (5) business days from the date of the election to file an election challenge. (Emphasis added)
make sense and be in harmony with each other, “allegations of impropriety” must mean more than just disagreement with a decision made by the Election Board. To find otherwise would make the last sentence of Section 5(a) meaningless. TwoCrow v. GTB Election Bd., Case No.2008–998–CV–CV, Order Concerning Jurisdiction and Dismissing Complaint (2008); Yannett v. GTB Election Bd., Case No.2008–1003–CV–CV, Order Concerning Jurisdiction and Dismissing Complaint, (2008). If the drafters of the Constitution had wanted the Tribal Court to hear all appeals from decisions of the Election Board, they could have easily drafted the Constitution to provide that remedy. Id. Instead, it is the opinion of this Court that the intent behind Section 5(a) was to make the Election Board the final arbiter of election disputes in most circumstances, not the Tribal Judiciary. Id. Further, it is the opinion of this Court that the intent of Section 5(c) was to give the Tribal Court jurisdiction to provide an avenue of redress only under limited circumstances where the Election Board itself acted improperly, such as where the Election Board acted in violation of the law or the Board’s own election rules, regulations and procedures; or where the Election Board’s conduct showed bias or prejudice such that its ability to render a fair decision was compromised or impaired; or where the Election Board failed to carry out its responsibilities with integrity, impartiality and competence. Id.
Election results are “presumptively valid.” Barrientoz v. GTB Election Bd., Case No, 2006–316–CV–CV, Opinion and Order: Petitioner’s Motion to Stay the GTB General Election, p. 4–5 (2006). This Court held in Barrientoz that: “Petitioners must demonstrate by clear and convincing evidence that: 1) the [Election] Board failed to comply with its own mandated policies and procedures in conducting and certifying the election; or 2) the Board followed its mandated policies and procedures, but that these policies and procedures are unconstitutional; or 3) the [Election] Board certified the election despite improper, or fraudulent practices which it had a duty to monitor and prevent.... [The Petitioners] would be required to demonstrate by clear and convincing evidence that the [Election] Board impropriety affected the outcome of the election.” Id., p. 6. While the Election Board has in essence conceded that they did not follow the 2008 Election Regulations in issuing its Election Dispute Determination as to Plaintiff Bailey, it argues that Bailey has not proven by clear and convincing evidence that the Election Board’s failure to follow the Election Regulations affected the outcome of the election.
In the instant case, we find that Plaintiff has established by clear and convincing evidence that the Election Board failed to comply with its own duly adopted 2008 Election Regulations in several respects when it met on May 19, 2008, and when it issued its Election Dispute Determination on May 20, 2008. The Election Board has admitted that it failed to follow the 2008 Election Regulations in issuing its determination against Derek Bailey. For reasons explained more fully below, the Court finds that the Board acted improperly such as would give this Court jurisdiction under Article VII, Section 5(c) of the Constitution of the Grand Traverse Band of Ottawa and Chippewa Indians. However, the Court also finds that Plaintiff has not proven by clear and convincing evidence that the Election Board’s actions affected the outcome of the election. Each witness called by Plaintiff Bailey indicated that they were concerned or angered by the Election Dispute Determination of the Election Board, but not one witness indicated that the Determination changed how they voted in the election. Under most circumstances, we would consider this lack of evidence to be fatal to the Plaintiff’s case. However, the unique facts and circumstances of this case present Constitutional issues of due process of law and a lack of fundamental fairness that we cannot ignore or excuse.
DUE PROCESS
We believe that the facts and circumstances of this case raise constitutional issues of due process. Under federal law, to state a due process claim, a plaintiff must establish that he was deprived of a recognized liberty or property interest entitled to protection by the Due Process Clause. Howard v. Grinage, 82 F.3d 1343, 1349–50 (6th Cir.1996) (“[P]rocedural due process prohibits arbitrary and unfair deprivations of protected life, liberty, or property interests without procedural safeguards.”) See also Ivey v. Wilson, 832 F.2d 950, 955 (6th Cir.1987). “The ‘root requirement’ of due process is ‘that an individual be given an opportunity for a hearing before he is deprived of any significant property interest.’ ” Purisch v. Tennessee Technological Univ., 76 F.3d 1414, 1423 (6th Cir.1996) (quoting Boddie v. Connecticut, 401 U.S. 371, 379, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971)). The U.S. Supreme Court has established that procedural due process claims are to be analyzed in a two-step process: first, the court must ask whether there exists a liberty or property interest which the state has interfered with; second, the court must examine whether the procedures afforded in connection with that deprivation were constitutionally sufficient. See Kentucky Dep’t of Corrections v. Thompson, 490 U.S. 454, 459–60, 109 S.Ct. 1904, 104 L.Ed.2d 506 (1989); Miller v. Lorain County Bd. of Elections, 141 F.3d 252, 259 (6th Cir.1998).
State of Michigan law on the right to due process is essentially the same as under federal law. Due process enforces the rights enumerated in the Bill of Rights and includes both substantive and procedural due process. Kampf v. Kampf, 237 Mich.App. 377, 381–382, 603 N.W.2d 295 (1999) quoting U.S. Const, Am. V; Mich. Const.1963, art 1, § 17. “At its most basic level, procedural due process requires fairness.” Kentwood v. Sommerdyke Estate, 458 Mich. 642, 696, 581 N.W.2d 670 (1998) (Weaver, 1, dissenting). Procedural due process serves as a limitation on government action and requires government to institute safeguards in proceedings that affect those rights protected by due process, including life, liberty, or property. Kampf, supra at 382, 603 N.W.2d 295. Due process is a flexible concept applied to any adjudication of important rights. Thomas v. Pogats, 249 Mich.App. 718, 724, 644 N.W.2d 59 (2002).
The question first becomes whether Plaintiff was deprived of any significant property or liberty interest. Whether the due process guarantee is applicable depends initially on the presence of a protected “property” or “liberty” interest. Williams v. Hofley Mfg. Co., 430 Mich. 603, 610, 424 N.W.2d 278 (1988). The U.S. Supreme Court has defined a constitutionally protected property interest as a “legitimate claim of entitlement” to some benefit. Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). A property interest is more than “an abstract need or desire,” or a “unilateral expectation.” Id. It is “an individual entitlement grounded in state law, which cannot be removed except for cause.” Logan v. Zimmerman Brush Co., 455 U.S. 422, 430, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982). “Due Process is not an end in itself. Rather, the constitutional purpose of Due Processes’is to protect a substantive interest to which ... [a party] has a legitimate claim of entitlement.’ ” Hyde Park Co. v. Santa Fe City Council, 226 F.3d 1207, 1210 (10th Cir.2000) (quoting Olim v. Wakinekona, 461 U.S. 238, 250, 103 S.Ct. 1741, 75 L.Ed.2d 813 (1983)). Property interests are not created by the Constitution, but are created and defined by rights under state law that support claims of entitlement to those benefits. Roth, 408 U.S. at 577, 92 S.Ct. 2701, 33 L.Ed.2d 548. Property interests may stem from state statutes, local ordinances, existing rules, contractual provisions or mutually explicit understandings. Id.; Perry v. Sindermann, 408 U.S. 593, 602, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972). The existence of a property interest is a question of law. See Tarabishi v. McAlester Regional Hosp., 827 F.2d 648, 651 (10th Cir.1987).
A person’s liberty interests are also protected by due process. In Manning v. City of Hazel Park, 202 Mich.App. 685, 694–695, 509 N.W.2d 874 (1993), the Michigan Court of Appeals stated:
A person’s good name, reputation, honor, and integrity are among the liberty interests protected by the Due Process Clause of the Fourteenth Amendment. Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). Reputation may constitute a liberty interest sufficient to invoke the protection of the Due Process Clause when it is connected with a more tangible interest such as employment Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976). To establish a liberty interest, the employee must show conduct of the governmental employer that might seriously damage the employee’s standing and associations in the community or that imposes a stigma or other disability that denies the employee the freedom to take advantage of other employment opportunities. Roth, supra.
The most familiar aspect of due process concerns deals with whether the procedure used in a particular government action is constitutionally sufficient. The constitutional sufficiency of the procedure may be tested by the balancing test set forth in Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976):
Identification of the specific dictates of due process generally requires consideration of three distinct factors: first, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards, and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute requirement would entail.
The procedural protections, which include fundamental fairness, are based on what the individual situation demands. Id. Fundamental fairness includes: (1) consideration of the private interest at stake; (2) the risk of an erroneous deprivation of such interest through the procedures used; (3) the probable value of additional or substitute procedures; and (4) the interest of the state or government, including the function involved and the fiscal or administrative burdens imposed by substitute procedures. Dobrzenski v. Dobrzenski, 208 Mich.App. 514, 515, 528 N.W.2d 827 (1995). “Due process in civil cases generally requires notice of the nature of the proceedings, an opportunity to be heard in a meaningful time and manner, and an impartial decisionmaker.” Cummings v. Wayne Co., 210 Mich.App. 249, 253, 533 N.W.2d 13 (1995). “The opportunity to be heard does not mean a full trial-like proceeding, but it does require a hearing to allow a party the chance to know and respond to the evidence.” Id.
The Michigan Supreme Court has explained:
The critical element provided by ... an administrative hearing is the opportunity for a party to present arguments and evidence in support of its position before a decision is rendered, the chance to respond before final action is taken. Notice and hearing are the means by which we guarantee that a party, knowing the consequences of a proposed action, has a forum in which to present its position in a meaningful way. Westland Convalescent Ctr. v. Blue Cross & Blue Shield of Michigan, 414 Mich. 247, 268, 324 N.W.2d 851 (1982).
The Constitution of the Grand Traverse Band of Ottawa and Chippewa Indians (hereinafter “GTB Constitution”) guarantees tribal members the right to due process, and is very similar to the Fifth Amendment of the United States Constitution. Article X, Section 1 of the GTB Constitution provides in pertinent part:
The Grand Traverse Band in exercising the powers of self-government shall not:
* * *
(h) Deny to any person within its jurisdiction the equal protection of its laws or deprive any person of liberty or property without due process of law;
This provision is essentially the same as the due process rights guaranteed to tribal members under the Indian Civil Rights Act of 1968, 25 U.S.C. § 1302(8), which states in pertinent part:
No Indian tribe in exercising powers of self-government shall—
(8) Deny to any person within its jurisdiction the equal protection of its laws or deprive any person of liberty or property without due process of law;
Other tribal jurisdictions have held that the Indian Civil Rights Act of 1968 guarantees procedural due process in hearings before tribal administrative agencies. Mustach v. Navajo Board of Election Supervisors, 1987.NANN.0000016, ¶ 31, Jan. 22, 1987. Procedural due process, under the Indian Civil Rights Act, relates to the requisite characteristics of proceedings seeking to effect a deprivation of liberty or property. Id. In the Mustach case, the Supreme Court of the Navajo Nation considered a case similar to this one where the Navajo Board of Election Supervisors failed to follow election law and regulations concerning a grievance filed by a candidate, citing concerns of inadequate notice and lack of a meaningful opportunity to be heard. The Court held that the failure of the Board of Election Supervisors to follow the election law was highly prejudicial to the plaintiff Mustach, and that he was denied procedural due process. Id., ¶ 32–33. As a result of these and other procedural errors, the Navajo Supreme Court ordered that a special election take place. Id., ¶ 40.
Other tribal courts have also indicated what is necessary to show a due process violation specifically in an election case. “In general, due process and other constitutional claims must establish that there has been a ‘patent and fundamental unfairness’ in the election process, ‘purposeful deprivation’ of clear rights,’ or ‘intentional wrongful acts’ in order to void an election.” Haskie v. Navajo Board of Election Supervisors, No. A–CV–63–90, 1991.NANN.0000017, ¶ 41, January 11, 1991, quoting Soules v. Kauaians for Nukolii Campaign Committee, 623 F.Supp. 657, 664 (D.Hawai’i, 1985).
We hold that tribal members are entitled to the essentially the same due process protections under the GTB Constitution as they are afforded under the United States or State of Michigan Constitutions. Given the significant and material failure of the Election Board to follow its own adopted 2008 Election Regulations, and the denial of any opportunity to provide any meaningful response prior to the election, we conclude that Plaintiff Derek Bailey’s constitutional right to due process was violated by the Election Board in this matter. The procedural deficiencies and the action taken by the Election Board immediately before the election to comment upon Plaintiff’s use of his work computer as outlined above, without any opportunity for Bailey to respond or challenge the action of the Election Board prior to the election, amounted to a deprivation of Bailey’s liberty and/or property interests. In this case, Bailey was denied notice of the nature of the proceedings, and was denied an opportunity to be heard in a meaningful time and manner. Cummings, supra, at 253, 533 N.W.2d 13. In short, Bailey has established that there has been a “patent and fundamental unfairness” in the election process, and a “purposeful deprivation of clear rights.” Haskie, supra, at ¶ 41.
The Election Board has argued that it took action essentially on an ex parte basis because there was not enough time to address the issues in the complaints. While the time frames would have undoubtedly been short, we specifically reject the notion put forth by the Election Board that it has the inherent authority to make election determinations on an ex parte basis. Ex parte is a Latin legal term meaning “from (by or for) one party.” Typically, courts only grant ex parte relief under exigent circumstances or on an emergency basis, or where notice to the opposing party may precipitate adverse action, such as in a child custody or personal protection matter. A court order issued on the basis of an ex parte proceeding, therefore, will typically be temporary and interim in nature, and the person(s) affected by the order must be given an opportunity to contest the appropriateness of the order before it can be made permanent. There is no procedural due process defect in obtaining an emergency order of protection without notice to a respondent when the petition for the emergency protection order is supported by affidavits that demonstrate exigent circumstances justifying entry of an emergency order without prior notice, see, e.g., Mitchell v. WT Grant, 416 U.S. 600, 94 S.Ct. 1895, 40 L.Ed.2d 406 (1974), and where there are appropriate provisions for notice and an opportunity to be heard after the order is issued. See id.; Gargagliano v. Secretary of State, 62 Mich.App. 1, 11, 233 N.W.2d 159 (1975). However, in the instant case, there was no meaningful opportunity for Bailey to be heard prior to the election, as the Election Dispute Determination was circulated to the public via the global e-mail less than 24 hours before the polls opened. There is no provision in the 2008 Election Regulations authorizing the Election Board to make election determinations on an “ex parte” basis, nor was such relief sought by the complainant.
As stated above, the testimony and affidavits presented at the trial indicated that the Election Board acted without following its own regulations because it sought to “clear the air” and address the rumors and innuendo that were circulating throughout the community as to what Mr. Bailey had done (as well as that the Election Board had not done anything about it), and because the Election Board felt there was not enough time to deal with the complaints fully without delaying the election. We perceive that the Election Board found itself in what it thought was an untenable situation. Namely, the Election Board could not act until there was a complaint before it, but Election Board members were aware of community rumors of their prior inaction and possible bias. Then the Election Board was presented with a last-minute complaint regarding the substance of the rumors circulating in the community. While we certainly have the benefit of hindsight, we find that the circumstances did not justify the Election Board’s failure to follow the duly adopted regulations which were sufficient to address the complaints. To make a determination under these circumstances without affording the interested parties notice or an opportunity to be heard, and issue that determination less than 24 hours before the start of the election violated Bailey’s fundamental right to due process.
CONCLUSION
In conclusion, we hold that the actions of the Election Board in failing to follow the provisions of the 2008 Election Regulations as outlined above, coupled with the time frame in which such action was taken that provided Bailey with no meaningful opportunity to respond or challenge the Election Board’s actions, were so egregious that it resulted in a violation of Derek Bailey’s right to due process. The only remedy which we find would adequately redress the Plaintiff in this situation is to order that a special election be held for the Tribal Council Chairman position. The Court does not make this decision lightly. We are very cautious about overturning a validly held election. The standards for overturning an election are strict, as they should be in the absence of a clear showing of unfairness. Johnson v. June, No. A–CV–31–82, 4 Nav. R 79, 1983.NANN.0000050, ¶ 30, September 30, 1983. As stated by the Fort Peck Court of Appeals, Assiniboine and Sioux Tribes in Reddoor v. Wetsit, Appeal No. 95, 1990.NAFP.0000009, ¶ 130, January 18, 1990:
As a general rule, a court of equity will not enjoin the canvass of votes or declaration of the result of an election, although there is considerable conflict in the decisions as to the underlying theory in support of denying injunctive relief in such a case. Some courts refuse the injunction on the theory that a court of equity either has no jurisdiction over questions purely political in character or that it will not interfere in political matters or protect purely political rights. Others have predicated their decision on the theory that the courts will not prevent the performance of a legal duty, and since the statute imposes on designated officers the duty to canvass the votes and declare the result, their acts in so doing are not subject to judicial control and supervision. The existence of an exclusive statutory remedy or the existence of an otherwise adequate remedy at law has also been held to preclude injunctive relief. Failure to show irreparable injury will also preclude enjoining the canvass of votes and the declaration of the result of an election, the theory generally being that until enforcement of the result of an election, as distinguished from its declaration, is attempted or threatened, there is no invasion of the complainant’s personal or property rights. However, equity will act to enjoin the canvass of votes and the declaration of the result of an election where the existence of particular factors justifies or calls for equitable intervention to protect personal or property rights. 26 AM. JUR.2d Elections Section 308 (1966).
In the final analysis, we must consider whether the election was honestly and fairly conducted. Slight irregularities are more than apt to creep into the procedure. To hold that slight irregularities, for which the voters were not to blame, should invalidate the election, is contrary to public policy. Thompson v. Cihak, 254 Mich. 641, 646, 236 N.W. 893 (1931). If there has been an opportunity to correct irregularities in the election process prior to the election, the challenger should not, in the absence of fraud, irregularity or misconduct that affects or impeaches the election process or results, be heard to complain of them afterward. Jones v. Election Board of the Fort McDowell Yavapi Nation, Case No. CV–2000–005, 2000.NAFM.0000001, ¶ 46, February 1, 2000. In this case, the irregularities involved were far more than slight, Bailey had no opportunity to correct or even address them, and under these unique circumstances they in fact rose to the level of depriving Bailey of his constitutional rights.
We are also mindful that this decision will affect not only the Plaintiff Derek Bailey, but his campaign opponent, Robert Kewaygoshkum, who has not been a party to these proceedings. We would note that absolutely no evidence has been presented to indicate that the Election Board, nor any of its members individually, were influenced by or acted at the behest of Mr. Kewaygoshkum (or any other members of the Tribal Council or Tribal Administration). The evidence presented leads us to the conclusion that the Election Board acted out of concern for how the Board was being perceived in the community for its failure deal with the rumors of Derek Bailey’s computer use. As stated above, we do not find this to be an emergency or exigent circumstance to justify the failure to provide a candidate with his or her due process rights.
We are also mindful of the potential for “opening of the floodgates” to future election cases with arguments being made of additional Constitutional rights violations. However, we would point out that the circumstances of this case are unique. If the election disputes had been filed in early March, rather than just days before the election, chances are the Election Board would have followed the procedure set forth in the 2008 Election Regulations and would have given Mr. Bailey an opportunity to be heard. It is the failure to follow those Election Regulations which resulted in no meaningful opportunity for Bailey to be heard which cause us to conclude that Bailey’s due process rights were violated and that a special election should result.
ORDER
WHEREFORE, for the reasons stated above:
1. IT IS HEREBY ORDERED that Plaintiff’s motion to enjoin the Grand Traverse Band Election Board from certifying the May 21, 2008 election as to the Tribal Council Chairman position is hereby GRANTED;
2. IT IS FURTHER ORDERED that the Election Board shall hold a new special election for the Tribal Chairman position;
3. IT IS FURTHER ORDERED that any election disputes or election challenges in connection with said special election shall be resolved by the Election Board pursuant to the provisions Constitution of the Grand Traverse Band of Ottawa and Chippewa Indians and its duly adopted Election Regulations.
SUPPLEMENTAL ORDER CONCERNING DELIVERY OF OPINION AND ORDER
WILSON D. BROTT, Chief Judge.
THE TRIBAL JUDICIARY has been advised that there has been some consternation as to who should be responsible for informing the Tribal membership of the Tribal Judiciary’s Opinion and Order, dated August 6, 2008, issued in this case, as well as how that should be accomplished. The Tribal Judiciary has consulted and considered the best methods to address the issue. The Tribal Judiciary believes that it is very important that the Opinion and Order be provided to all of the voting members from the last election. The Tribal Judiciary will endeavor on its own part to have the Opinion and Order published in the September GTB Newsletter and to have the Opinion and Order placed on the Tribal Judiciary web page that is part of the Tribe’s current website. However, the Tribal Judiciary feels that the only effective method to ensure that all voting members will be fully informed of its decision is for the Opinion and Order to be mailed to each of them directly. THEREFORE:
1. IT IS HEREBY ORDERED that the Election Board shall send to each voter registered to vote in the last tribal election via first-class mail a copy of the Tribal Judiciary’s Opinion and Order dated August 6, 2008, within fourteen (14) days of the date of this Order.
2. IT IS FURTHER ORDERED that the Election Board shall submit a Proof of Service that the Election Board has complied with this Order to the Tribal Court no later than twenty-one (21) days from the date of this order, and shall serve a copy upon opposing counsel as required by Court Rule.
All Citations
Not Reported in Am. Tribal Law, 2008 WL 6196206
Footnotes |
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Hon. Mary Roberts, Appellate Judge, did not participate in the decision. |
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We suggest that this provision should also require notice to be given to any candidate or other interested party accused of wrongdoing, not just the party filing the challenge. |
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The Election Board indicated in its Election Dispute Determination that no written election dispute had been filed with the Board until it had received the Witherspoon and Anderson complaints. The Election Board stated in the Election Dispute Determination: |
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The May 29, 2008 IT Department Report (Exhibit E) indicated that Derek Bailey accessed his website on 13 different dates between January 28, 2008 and February 27, 2008. The report does not provide detail to indicate the time of each hit, or how many visits were made to the website in a particular day. |
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